We haven't seen the last of election litigation

The gubernatorial election contest in Washington state has ended, but its impact will extend far beyond the state for many years. I draw three main lessons from the Dino Rossi-Christine Gregoire battle: High-profile legal contests in very close elections will proliferate; public opinion about the legitimacy of the election process and the courts remains fragile; and the government must put more resources into fixing both election-administration problems and election law.

First, it now appears virtually impossible to avoid litigation in the case of close elections. The breaking point appeared to be Bush v. Gore, the case that ended the Florida 2000 recount. According to research I recently concluded, we have seen an explosion in election litigation since the case, driven only in part by the U.S. Supreme Court's actual holding that certain vote-counting procedures can violate the equal protection clause of the 14th Amendment. Equally important appears to be decreased resistance to litigation on the part of losing candidates, who no longer simply accept the results of an election that is essentially a statistical tie.

The temptation to litigate has become nearly impossible to avoid. The combination of a very close election with a highly polarized electorate and a far-from-perfect election-administration system creates the right conditions for litigation. With so much at stake, and so much imperfection in the system, why would rational candidates now choose not to sue?

Second, public opinion about the legitimacy of the election process and the courts remains fragile. My research shows that those on the losing end of close elections tend to have much less faith in the election process than the winners. Nationally, this has meant that Democrats have been less trusting that the election process is fair than Republicans.

But the trend is the opposite in Washington, where the Democratic candidate squeaked by the Republican. According to data gathered for a January 2005 Elway poll, 68 percent of Republicans thought the state election process was unfair, compared with 27 percent of Democrats and 46 percent of independents.

It is not just the public's faith in the election process that is at stake, but also faith in the judiciary. Rossi did not help matters when he claimed his reason for not appealing to the Washington state Supreme Court was because of its "political makeup." Rossi's comments were gratuitous and unfortunate.

I listened closely to Chelan County Superior Court Judge John Bridges' ruling and concluded immediately that Republicans would have a tough chance of succeeding on appeal, particularly given the factual findings of the trial judge and the standard of review on appeal. I made that assessment knowing nothing of the political makeup of the Washington state Supreme Court, or its method of selection.

Perhaps I am naive, but I assumed the justices on that court would be making a decision on the merits, not based on political outcomes. On the merits, Rossi's case was very weak. Statements like Rossi's only tend to denigrate further the public's faith in the judiciary and the election contest.

The final lesson is that many more resources need to be put in place to fix problems of both election administration and election law. In a race with a newly revised 133-vote margin out of almost 3 million votes cast, the entire election process will be put under a microscope. While perfection is not achievable, rational systems need to be put in place to ensure that all eligible voters (and only eligible voters) get to vote and have their votes counted fairly and accurately by neutral election administrators. Nonpartisan election administration is the best way to ensure both the actuality and appearance of fairness in that process.

The Legislature also needs to look at the way the state's election contest rules are written. Because Judge Bridges' rulings were not appealed, many legal questions remain unanswered. For example, it remains unclear what kind of proof of illegal votes a losing candidate must produce to change the results of an election. The clearer rules can be in advance, the fewer opportunities for litigation.

In the end, there is not much we can do to avoid close elections, but the Washington experience shows us there is much to be done to improve our process of election administration and decrease the chances of distracting and troubling election litigation.